This post by Ampersand rounds up the recent blogosphere reaction to the scandal of widespread prison rape. As he notes, conservative, libertarian, and liberal bloggers all agree that more should be done to curb prison rape. Yet, he concludes, "this is a curious case where it appears that everyone agrees, yet nothing ever gets done."
For what it's worth, I agree with everyone else that we should do more to prevent the rape of prisoners. But the government's failure to address the problem is not accidental. Government is responsive to those who have political power, and prisoners are the classic example of a group that has almost no power, and is generally unpopular with those who do. In most states, prisoners don't even have the right to vote, and of course their ability to wield political power in other ways (activism; campaign contributions; lobbying, etc.) is also extremely limited. Most of the general public, by contrast, is either unaware of the problem of prison rape or doesn't care about it very much. And, of course, measures to make it easier for prisoners to sue or otherwise alleviate their plight will be strongly opposed by prison guards unions and other influential interest groups.
This is an extreme case of an important broader lesson about the nature of government: it usually can't be relied on to protect the political powerless or even the relatively weak. As I have blogged in the past, the same point applies (albeit with less force) to claims that a strong government will be good for the poor. Because the poor have little political power, government intervention is more likely to cut against their interests than in their favor - especially when the needs of the poor conflict with those of middle class or wealthy interest groups.
Returning to the prison rape question, we probably cannot adopt here the standard libertarian solution of simply ending government involvement with the issue - at least not without unacceptable social costs. We can, however, reduce that involvement. As I pointed out several months ago, nonviolent drug offenders account for 55% of all federal prisoners and 21% of state prisoners, and probably account for even higher percentages of all incarcerated nonviolent offenders. Eliminating or cutting back on the War on Drugs - which is highly desirable for many other reasons - would have the beneficial secondary effect of greatly reducing the number of people exposed to prison rape.
A second way of reducing (though not eliminating) government involvement in this field is prison privatization. As co-blogger Sasha Volokh demonstrates in a recent paper, replacing government-run prisons with private ones may well reduce the overall lobbying power of the prison industry, and thereby make it easier to both reduce overall incarceration levels and force improvements in prison conditions. Even under privatization, it would still be difficult to force through legislation that reduces incarceration rates or protects prisoners. But it would be easier to achieve this than under the status quo.
Ultimately, efforts to alleviate the problem of prison rape are likely to fail politically unless they include policies that benefit constituencies more powerful than the prisoners themselves. My two suggestions both have this virtue. Constraining the War on Drugs would benefit the many people who want to see limited legal drug use, such as legalized medical marijuana (a proposal popular even in conservative states). Prison privatization will, of course, attract the support of those private firms that hope to get contracts to run private prisons.
UPDATE: I have slightly altered the original title of this post to make my point more clear.
UPDATE #2: Mark A.R. Kleiman responds to this post with a combination of arguments and overrwrought rhetoric here. Kleiman suggests that prison rape is not an example of the general shortcomings of government because rape is relatively rare in federal prisons:
rape remains a rarity within the Federal prison system; the U.S. Bureau of Prisons is generally a higher-performing organization than the state prisons. So if prison rape demonstrates some sort of generalized failure of "government," how come it isn't much of a problem for the biggest government of all?
An obvious response is that federal prisons, unlike state prisons, contain relatively few people convicted of violent crimes. Most murders, rapes, assaults, etc., are state crimes. Federal prisoners are mostly nonviolent small-time drug dealers. A prison population with few people convicted of violent offenses will also have relatively fewer prisoners willing to rape fellow inmates. As of 2003, 52% of state prisoners were serving sentences for violent crimes. compared to only about 10% of federal prisoners (figure calculated from this Bureau of Justice Statistics report). Perhaps even more to the point, the BJS report indicates that some 12% of state prisoners are incarcerated for rape or "other sexual assault," while almost no federal prisoners fall into these categories. I'm no criminologist, but I suspect that a prison population with a large percentage of rapists is going to have a lot more prison rape than one with very few.
Kleiman also argues that Sasha Volokh's paper on prison privatization, which I cited above, doesn't support my conclusion that privatization might reduce the overall lobbying power of the prison industry. He quotes a part of the abstract, but not this part:
In fact, privatization may well reduce the industry's political power: Because advocacy is a “public good” for the industry, as the number of independent actors increases, the largest actor's advocacy decreases (since it no longer captures the full benefit of its advocacy) and the smaller actors free-ride off the largest actor's contribution. Under some plausible assumptions, therefore, privatization may actually decrease advocacy, and under different plausible assumptions, the net effect of privatization on advocacy is ambiguous.
Readers can judge for themselves whether or not this is consistent with my characterization of the paper as stating that "replacing government-run prisons with private ones may well reduce the overall lobbying power of the prison industry."
Kleiman also argues that the real way to address prison rape is to improve the quality of prison management and to elect politicians who will support reform in this area. These are worthy objectives, but he does not explain how they are to be achieved given that 1) prisoners themselves have almost no political power, and 2) most voters don't seem to care about the issue. In the course of making this point, Kleiman also conflates Republican Party advocacy of "tough on crime" policies with the fostering of prison rape by promoting "hatred of criminals." This ignores the obvious fact that some criminals arguably deserve to be hated, and that it i not inconsistent to support harsh penalties for criminals, while also opposing prison rape.
Finally, Kleiman claims that "Somin, who would like to see the Libertarian Party get out of the way of the project of maintaining Republican electoral dominance, is in effect voting for more incarceration, more brutality, and more rape every time he pulls the Republican lever."
As for the claim that the Republicans are unique in supporting "incarceration" and "brutality" and prison rape, this charge would hold more water if there were proof that the Democratic Party's positions on these issues are significantly different from those of the Republicans. Kleiman himself notes that the Democrats have been "cowed into inaction" on these questions. The fact - which Kleiman correctly notes - that many of them are privately more sympathetic to efforts to address these issues than most Republicans is cold comfort unless and until they actually act on those convictions.
Is John McCain's website suggestive of NAZI iconography?
It was a pleasure to see Ann Althouse at the New York Law School conference yesterday.
Ann has a post today on a disturbing line of attack on John McCain's website, which uses as much black, white, and gray as possible:
John McCain has an aesthetically pleasing website, which is distinguished by the very low color level. Instead of the usual florid blue and red, it uses elegant, crisp black, white, and gray. Perhaps that calls to mind some beautifully photographed black and white movie. Bring on the liberal commentators, and what movie do they think of? Of course, it's "Triumph of the Will," which, admittedly, is a film known for its crisp black and white photography (to go along with its Nazi propaganda).
Atrios is right, John McCain's new campaign web site is totally "imperial stormtrooper chic."
The color scheme strikes me as more evocative of 1930s Hollywood than NAZI iconography. NAZI colors are black, white, and definitely (blood) red.
Here is a page of 1933-45 NAZI propaganda posters.
Here is a page of 1030s Dutch political posters, some of which appear to be pro-labor or progressive.
I have no idea how representative these selections are. While there are certainly more black-and-white (and low color) posters in both collections than one would see in the 1930s French or Swiss travel posters that are sold on the market today, that may reflect more the desire to depict travel (or food) in more colorful terms.
The four posters I copied here are neither the most, nor the least, colorful on either site. They all are from the same year, 1933.
The few FDR posters I've seen are not particularly colorful either:
Exra Klein goes on to criticize the martial tone of the content of the McCain website, a criticism with which Ann in part agrees.
UPDATE: There are MANY excellent comments below, which require some additional qualifications.
First, "Imperial Stormtroopers" refers more directly to a military force in Star Wars (who wore black and white uniforms), rather than the NAZIs. Of course, they were named Stormtroopers to suggest NAZIs.
Second, I noted that Ezra Klein attacked the martial tone of the content of the site, as well as its color scheme, though I didn't discuss his comments. Klein makes explicit NAZI references, but many of them focus on the videos, rather than the black-and-white color scheme.
So while Atrios's comment wasn't explicitly about NAZIs, Klein's was, though Klein focused more on the videos than on the color scheme. Although I still find the line of argument "disturbing," which was my main editorial comment, I realize that by quoting just part of Ann Althouse's post, my original post may have implied more than was justified.
Pyongyang, February 14 (KCNA) -- Symposiums on the undying feats performed by Kim Jong Il were held by working people's organizations....
The speakers profoundly explained the imperishable feats performed by Kim Jong Il for the times and history, noting that his birth was a great auspicious event which opened a bright prospect before the continuity of the Juche revolutionary cause and accomplishment of the human cause of independence.
They said Kim Jong Il, genius of thought and theory, scientifically formulated the revolutionary idea of President Kim Il Sung and steadily developed it in depth to meet the demand of the developing revolution, thus clearly indicating the road ahead of the times and humankind....
Thelonious Monk Quartet Plays Blue Monk:
One of my favorite YouTube clips these days is this terrific performance of the Thelonious Monk Quartet playing "Blue Monk." The clip was recorded live in concert in Olso, Norway, on April 15, 1966. The wonderful Charlie Rouse is on tenor, with Ben Riley on drums and Larry Gales on bass. It's a very tight group that by this time had been playing together for two years, and it shows. The camerawork is marvelous throughout, too. Great stuff.
If you're interested in hearing more, I would start with Monk's Dream, a 1962 recording that pairs Monk and Rouse with John Ore on bass and Frankie Dunlop on drums. If you don't mind a CD with mostly solo piano, I'm also very partial to Monk's 1957 Prestige recording Thelonious Himself.
Asaf Romirowsky, "associate fellow at the Middle East Forum and manager of Israel & Middle East Affairs for the Jewish Federation of Greater Philadelphia," writes in the Washington Times:
Post-September 11, the most intense debates about "academic freedom" have involved Middle Eastern studies, especially the Israeli-Palestinian conflict. The "right" to teach Israel as original sin and the Israel lobby as a Jewish conspiracy controlling America has been challenged, and, unfortunately, has produced even more virulent rhetoric and overt attacks on Jews. Academia has unconsciously exposed Jews and Israelis as the canaries in the coal mine. If universities are indicators of social trends, then anti-Semitism is becoming more acceptable in the guise of anti-Zionism. Only Jews are unworthy of having a sovereign state, thanks to various sins past and present.
Such attitudes are shockingly common on university campuses, and are protected by "academic freedom." Does calling for the destruction of a state and the dispersal of a people qualify the protections designed by Dewey and Lovejoy? Fortunately, most Americans agree neither with the idea that Israel should be abolished nor with the blanket protections that currently constitute "academic freedom." The gap between academia and the public is increasing, in part because on moral issues, like defending democracy against jihadi terror and rigorous free speech, the public realizes that universities are on the wrong side....
Of course arguing that Israel shouldn't exist as a state (a view, I should stress, that I most certainly don't endorse) is within the scope of academic freedom, both the freedom to engage in academic discussion defined narrowly (e.g., in a scholarly publication or in an academic panel) and defined broadly (e.g., in a broader political discussion on campus or off it). Whether Israel should exist as a country -- or whether Palestine, the U.S.S.R., the former Yugoslavia, North Korea, or a unified Iraq should exist as a country -- is an eminently legitimate subject for academic debate.
I agree that the consequences of the elimination of Israel as a country (a war, in my view unjust, aimed at accomplishing this, and at best the need for many Israelis to emigrate) would be very bad. Likewise, the consequences of some proposed wars might be bad; the consequences of mutually assured nuclear destruction might be bad; so would the consequences of abandoning mutually assured nuclear destruction; so would many other things. But that bears on which side of the debate is right, not on whether academics should be free to debate the matter. That we think one position is wrong or even immoral doesn't mean that people shouldn't have the freedom to espouse that position, in the academy or elsewhere. (It may not be proper for academics to teach their personal views as the only moral truth in the classroom, or to shut up contrary views, or to do many other bad things, but that is also true independently of whether their personal views are good or evil.)
Also, what's with this view (which of course I've heard before from others) that critics of Israel -- or even of Israel's existence -- are arguing that "Only Jews are unworthy of having a sovereign state"? There's hardly universal support, on the academic Left or elsewhere, for an independent Quebec, Kurdistan, Basque homeland, Turkish Cyprus, Serbian Kosovo, or whatever else. When an ethnic group is entitled to a sovereign state is a difficult question, on which there's a good deal of disagreement.
It's true that one rarely hears calls for the abolition of a particular ethnic group's state, but surely if the Spanish Basques announced a homeland (as I believe the Turkish Cypriots have) it would be legitimate for the Spaniards to continue arguing that this homeland should be reabsorbed into Spain. Again, I do think that abolishing Israel would be wrong in many ways -- but not because all ethnic groups, including Jews, are worthy of having a sovereign state. And there's certainly no well-established a priori principle that somehow categorically excludes calls for such abolition from academic discourse.
Gun-related data for criminals who shoot police officers:
The FBI recently completed a major study of shootings of police officers. Titled "Violent Encounters: Felonious Assaults on America’s Law Enforcement Officers," the document is not currently available on the web. The publication Force Science News, which comes from the Force Science Institute, of the University of Minnesota, Mankato, has reported on the study. Regarding firearms, FSN writes:
"Predominately handguns were used in the assaults on officers and all but one were obtained illegally, usually in street transactions or in thefts. In contrast to media myth, none of the firearms in the study was obtained from gun shows. What was available 'was the overriding factor in weapon choice,' the report says. Only 1 offender hand-picked a particular gun 'because he felt it would do the most damage to a human being.'
Researcher Davis, in a presentation and discussion for the International Assn. of Chiefs of Police, noted that none of the attackers interviewed was 'hindered by any law--federal, state or local--that has ever been established to prevent gun ownership. They just laughed at gun laws.'"
The summary of the study also provides information that many of the criminals who attack police officers are fairly skilled at gun use, and, unfortunately, diligent in their training.
The FBI website says that "Violent Encounters: Felonious Assaults on America’s Law Enforcement Officers is available from the UCR Program Office, FBI Complex, 1000 Custer Hollow Road, Clarksburg, WV 26306-0150 or by calling 888-827-6427." I tried the 888 number once, and got a recording.
Is More Money the Answer to the Public Use Problem?
My final post responds to the common suggestion that more money is the “answer” to the public-use problem. (Many thanks, again, to Eugene for inviting me to guest blog this week. It’s been great fun!)
First, The Relationship Between Compensation And Deterrence Is Uncertain
“More compensation” proponents frequently argue that above-market compensation will deter inefficient takings. The difficulty with this argument, however, is that Takers tend to respond to political incentives rather than economic ones. And, in the economic development context, political incentives may favor overinvestment in questionable projects. For example, the fact that Takers n frequently give away property as part of an “incentive package” may suggest that the deterrent effects of increased compensation will be limited.
Proposals to limit Takers ability to spend state and federal funds on economic development takings offer a more promising way to deter inefficient projects. While Takers may well perceive that the political costs of spending someone else’s money are very low, local officials spending local money are constrained by the political need to keep taxes low. They also operate underlegal constraints that disfavor an aggressive takings policy, including debt- and tax-limitations. Were local Takers forced to internalize the costs of their takings, it is reasonable to assume that eminent domain would become a much less attractive economic development tool. (One potential pitfall of this approach is that it might increase the risk of undercompensation, as many state relocation assistance laws limit protection to projects funded by state or federal funds.)
Second, Higher Compensation May Impede Political Resistance
If higher compensation levels will not deter inefficient government takings, then effective political resistance becomes all the more crucial. Yet, Takers may use high compensation levels to limit resistance. Both Kelo and Poletown illustrate this phenomenon. In Kelo, only seven property owners objected to the project, which involved the acquisition of 115 parcels. The other owners’ willingness to sell may have reflected the fact that the State of Connecticut guaranteed residents and small business up to $250,000 for downpayment assistance and business reestablishment. Similarly, William Fischel has observed that in, Poletown , the City’s generous compensation offers were quickly accepted by the younger residents, leaving behind a relatively small cohort of older Polish residents to fight the GM project. While Poletown was a relatively integrated community, most of the African-American residents moved voluntarily. This created the impression that the resistance was a racial issue, a fact which made it virtually impossible for local politicians in the majority-black city to oppose the project.
Third, Private Takings May Generate Unique Dignitary Harms
Undercompensation is frequently used to justify public-use review, but proponents of judicial intervention (including, admittedly, myself) tend to gloss over the precise connection between the amount of compensation and the purpose of a taking. Market-value compensation might be “unjust” because owners are systematically undercompensated when their property is taken by eminent domain. But, the question of what level of compensation is “just” applies to all eminent domain takings. When confronted with a property owner’s assertion that they could accept their fate if the government had taken their land for a traditional public use, an economist might “impatiently exclaim, ‘but you’ve lost your home in either case!’”
There are, however, a number of reasons why the size of the uncompensated increment might vary with a taking’s purpose. First, “private” takings may generate collective anxieties that public ones do not. Recall, for example, Justice O’Connor’s warning that, after Kelo, “[t]he specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.” Or consider the Becket Fund for Religious Liberty’s warning, discussed in Ilya’s recent post, that Takers might condemn churches, which do not pay property taxes, in order to transfer the property to for-profit entities, which do.
Second, the government’s decision to take property from one private owner and give it to another may generate what might be called “expressive” harms. Owners may perceive the taking as an insult—tantamount to a government declaration that their property would be put to a more socially beneficial use by someone else. Indeed, some owners sound as if they were motivated to file public-use claims in part because they are so offended by the message sent by the taking.
Third, in the economic development context, an exercise of eminent domain almost always generates assembly gains that raise the value of the property. Because the fair market value determination is made before the condemnation, however, the original owner does not share in any increased of that value. The allocation of the “condemnation bonus” entirely to the private beneficiaries of takings may demoralize property owners.
Kelo moved the debate over the proper scope of the eminent domain power out of the courts and into the legislatures, where owners’ dignitary interest in their property—and the collective anxieties generated by the knowledge that owners are not afforded property-rule protection from private takings—rightfully make up part of the case for substantive limits on the eminent domain power.
Global Warming For Thee But Not for Me:
The Associated Press has a story about climate change that has been getting some play in the blogosphere:
It may be cold comfort during a frigid February, but last month was by far the hottest January ever. The broken record was fueled by a waning El Nino and a gradually warming world, according to U.S. scientists who reported the data Thursday. Records on the planet's temperature have been kept since 1880. Spurred on by unusually warm Siberia, Canada, northern Asia and Europe, the world's land areas were 3.4 degrees Fahrenheit warmer than a normal January, according to the U.S. National Climatic Data Center in Asheville, N.C. That didn't just nudge past the old record set in 2002, but broke that mark by 0.81 degrees, which meteorologists said is a lot, since such records often are broken by hundredths of a degree at a time.
Over at Powerline, Scott Johnson (who I had the pleasure of meeting in person a few months ago) suggests that the story may be all hot air. He points to the following comment from reader William Katz:
The story lists the usual "global warming" horrors. Then, toward the end, the writer casually informs us that January temperatures in the U.S., presumably the home of environmental original sin, were essentially normal, "ranking only the 49th warmest since 1895." Oh. As Gilda Radner used to say: "Never mind."
I'm no expert in global warming, but isn't Mr. Katz wrongly assuming that the causes and effects of climate change occur in the same place? It's been 15 years since I looked at this issue closely, but I thought that it was called "global warming" and not "national warning" or "New Jersey warming" because potential causes of climate change introduced in one place tend to have a global effect. If you pump out CO2 in Ohio one day, the next week that CO2 is mostly on the other side of the planet thanks to the jet stream, etc. Given that, I don't know why average temperatures in the U.S. last month somehow is supposed to discredit the AP story about worldwide averages.
That's my understanding, at least. Am I wrong? I hope informed readers will offer some thoughts in the comment thread.
Brian Tamanaha on "Popular Myths About the Legal Realists"
At Balkinization, Brian Tamanaha has an interesting post on common misunderstandings of Legal Realists. It resolves some contradictions that I had never understood (in part, I had taken Jerome Frank, who is a bit of an outlier, as a typical Realist).
Llewellyn’s point was that the Realists were indeed critical of mechanistic accounts of judicial decision-making—as deductive and exclusively rule-focused—but they did not commit the opposite error of suggesting that judging is purely subjective and not legally constrained. Rather, the Realists brought attention to other stabilizing aspects of the craft of law and judicial decision-making besides just the legal rules. While they denied that law was certain to the extent that formalism portrayed, they agreed that there was a great deal of certainty and predictability in law (though not attributable to the legal rules alone). They also argued that in some cases policy decisions were called for and should be done openly by judges, although they recognized that many cases were routine and determined by the legal rules.
If you're now having trouble with the site that seems to be linked with the digg code -- e.g., occasional error messages and offers to debug the script, conditions that sprung up after late Wednesday night, when we turned it on -- please post a comment or drop me an e-mail (volokh at law.ucla.edu). Our digg code has some temporary flaws (which we hope will go away in a few weeks, as a new PowerBlogs feature is added), and I wanted to know if they affect enough people that we should just drop the code.
I'm looking for problems you're having now -- we had more problems Thursday morning, but I think we fixed most of them. Thanks!
Justice Kennedy Argues for a Judicial Pay Increase and Against Allowing TV Cameras in the Supreme Court:
In his recent testimony before the Senate Judiciary Committee, Justice Anthony Kennedy forcefully argued for a pay increase for judges and against allowing TV cameras in the Supreme Court.
Perhaps needless to say, I disagree with Justice Kennedy on both issues. For my critique of arguments for a judicial pay increase, see here, here, and here. In addition to the various arguments for a pay increase that I have criticized in previous posts, Justice Kennedy adds the claim that "judges are being lured off the bench into academia" because law professors supposedly have higher salaries than judges do. Unfortunately for Kennedy, there is little if any proof that significant numbers of federal judges are in fact leaving the bench to become lawprofs. Indeed, it is far more common for professors to leave academia to become judges than vice versa. I can think of numerous prominent law professors who have left academia for the judiciary. The fact (noted in the article) that one district judge recently left the bench to become Dean of Duke Law School (one of the top 15-20 schools in the country) is hardly proof of a trend.
Moreover, as Paul Caron of Taxprof Blog (a supporter of judicial pay increases) points out, the average law professor at "full professor" rank makes about $136,000/year, almost $30,000 less than the salary of a federal district judge. Only 3 of 88 law schools responding to a recenty survey cited in Caron's post reported average full professor salaries higher than $165,000/year.
As for TV coverage of the Court, I remain unpersuaded by Kennedy's arguments against it, though I won't analyze the issue in detail here. Strangely, Senator Arlen Specter, the ranking Republican member of the committee, seems to think that the Supreme Court would not be required to obey a congressional statute requiring them to allow TV coverage of oral arguments. According to the Legal Times story linked above:
If Congress did pass his bill [to require the Court to permit TV coverage of its proceedings], Specter said in a conciliatory tone, “it would be our opinion,” which could then be overtaken by “your opinion.” Specter did not explain the comment.
Specter seems to have overlooked the broad cross-ideological consensus among constitutional law scholars that Congress does in fact have the constitutional authority to override the Supreme Court's preferences on this issue.
UPDATE: For analysis of yet another flaw in the case for a judicial pay increase, see this recent post by Ben Winograd on the Wall Street Journal Blog.
I think the results of such self-selected online surveys are bunk, since they're unrepresentative of the views of any group other than the group that happened to answer the survey. On the other hand, while I wouldn't quote such surveys or run such surveys, I'm not averse to participating in such surveys ....
More than two dozen urban journalism programs throughout the U.S. will not use race as a criteria for enrollment under a settlement with a white high school student who was rejected by one of the programs.
The Dow Jones Newspaper Fund and other principals agreed to the settlement in return for the Center for Individual Rights withdrawing its legal challenge of the programs, both parties said Wednesday.
In September, the center filed the class-action lawsuit on behalf of Emily Smith, 16, who said she was accepted last spring to the Urban Journalism Workshop at Virginia Commonwealth University. One week later, she said, she was rejected after program sponsors learned she was white.
Under terms of the settlement, neither VCU, Dow Jones nor any of the principals admitted to any wrongdoing. VCU also agreed to pay $25,000 to Ms. Smith and her attorneys and admit her to the program next summer....
The settlement requires VCU and other programs sponsored by Dow Jones to select students "without regard to race." The programs also agree to publicly acknowledge they will offer no preferential treatment or discriminate against any prospect "on the basis of race or ethnicity." ...
I know the CIR people well, and think very highly of them -- this sounds like quite a significant victory.
Most academic discussions of eminent domain also overlook the fact that the compensation that a property owner receives almost always results from a bargain between the owner and a Taker, rather than a judicial determination of the property’s fair market value. State and federal laws require Takers, in most instances, to seek to purchase property on the market before resorting to eminent domain. Even if pre-condemnation bargaining were not required, the government would have important incentives to negotiate to avoid the high “due process costs” associated with a formal eminent domain proceeding.
Anecdotal accounts accusing the government of “low balling” property owners during pre-condemnation negotiations are common. It is difficult to evaluate these claims. Certainly, the negotiations that precede a condemnation differ in material respects from arms-length negotiations between private individuals. Pre-condemnation negotiations really do occur in “in the shadow of the law.” Eminent domain is the classic example of liability-rule protection of an entitlement: both parties understand that an objecting property owner cannot ultimately say no. Owners have little incentive to ask for more than market value if they realize that they will not get it. Of course, if a property owner believes that the government is understating the value of her property, she could exercise her legal right to challenge the amount of compensation offered in court. But, a rational property owner will not force the government to condemn her land unless the expected value of the proceeding—that is, the award minus litigation costs—exceeds the government’s offer.
That said, Takers operate under significant incentives to reach a mutually advantageous agreement. For example, many states penalize the government for failed negotiations by awarding the property owner attorney fees and costs if the final judgment in an eminent domain proceeding exceeds the government’s final offer. These fee-shifting statutes penalize the government for unreasonably refusing to settle prior to trial. As a California appellate court recently observed, “one would expect a prudent condemnor to offer its best estimate of fair market value plus some reflection of its own savings from avoiding trial, with a further upward adjustment for elimination of potential liability for the condemnee’s litigation expenses.”
Building the H2 Plant: A Bargaining Case Study
Because the negotiations between property owners and Takers are opaque and decentralized, it is difficult to gain information about how the bargaining process works. The remainder of this Post therefore outlines a case study that I conducted of an economic-development project near my home in South Bend, Indiana. This project required the assembly of fifty-two parcels in order to construct a manufacturing facility that promised to generate significant economic benefits to a relatively depressed economic area. This case study is not generalizable, but it does yield insights into the kinds of factors influencing Takers’ negotiations with property owners.
AM General has manufactured “Humvees” in northern Indiana since 1984. In 1992, AM General began to use this plant to manufacture ultra-luxury sports utility vehicles (known as the “Hummer” or “H1”) for civilian use. In 1999, GM acquired exclusive rights to the Hummer trademark, but agreed that AM General would manufacture a smaller, more affordable, “H2,” for GM. This agreement was conditioned upon AM General acquiring the property for a new 630,000-square-foot manufacturing facility quite quickly. AM General and GM decided to build the new plant directly adjacent to the existing Humvee facility. The property needed for these purposes consisted of fifty-two separate lots in a low-density, blue-collar, residential neighborhood.
AM General itself acquired the seven parcels directly adjacent to its property; these property owners received, on average, 141% of the appraised value of their homes. St. Joseph County, Indiana agreed to acquire the remainder of the needed land, by eminent domain if necessary. The County began to take steps to pave the way for condemnations. These initial legal moves upset residents, causing the the County to allow more time for private negotiations. Between March and June of 2000, the County purchased the remaining parcels voluntarily. The County now leases the property back to AM General.
In preparation for negotiations with property owners, county officials consulted with several private companies that had assembled land for large projects in the area. These experts indicated that assembling property that is not currently on the market usually requires prices that exceed market value by 20 to 25 percent. Apparently in response to this advice, county officials decided to comply with the federal relocation assistance guidelines. While the County did not believe that it was bound by these rules, generous relocation assistance was seen as a way to expedite the bargaining process. Before approaching a landowner, the County acquired two appraisals of the targeted properties. The County also presented the property owners with an estimate of the relocation assistance that they would receive, in an effort to demonstrate that the fair market value award was only part of the compensation that they would receive. Finally, AM General independently offered to pay every property owner a $5000 bonus for meeting the voluntarily negotiated time schedule, half of which was paid at the closing and the other half when the owner vacated the property.
I collected data on the appraisals, sales prices, and relocation assistance for each of the parcels purchased by the County. This data reveals several very interesting things about the bargains between the County and the targeted property owners. First, property owners received, on average, 157% of the average appraised value of their property. Second, a significant part of the total compensation that owners received came in the form of relocation assistance. As a result, the total compensation received by owners displaced by the County actually exceeded the compensation received by the seven owners who negotiated directly with AM General. Third, the high compensation levels were almost universally attributable to replacement-value payments. With one exception (an unoccupied house), the county paid some form of replacement subsidy. The average replacement value stipend received by homeowners was $40,529.10 (nearly twice the statutory maximum); the payments ranged from a low of $441.74 to a high of $85,500. On average, owners received a replacement-value stipend equal to 44.81% of their sale price. Some stipends exceeded the sale price: One owner received $56,000 for his house and $85,500 to secure a replacement dwelling; another received a $74,300 replacement subsidy for his $69,000 house.
This case study is not intended to demonstrate how the pre-condemnation bargaining process works in every case. Pre-condemnation bargaining is context specific and undoubtedly is influenced by local legal, political and economic circumstances. But to understand eminent domain, we need to learn more about the ubiquitous – but almost universally disregarded – practice of precondemnation negotiations.
"Popular Myths About the Legal Realists":
I've suggested before that the 19th century legal scholar Christopher Columbus Langdell is often unfairly caricatured as one who saw law as a formal science following absolute principles. Over at Balkinization, Brian Tamanaha looks at similar caricatures on the other end of the spectrum in a very interesting post, Popular Myths About the Legal Realists. Putting the two together suggests that the realists caricatured Langdell and then were in turn caricatured by others, leading to two caricatures that are very popular but might not have much grounding in reality.
Some program called "Digg" has set itself up on the VC website, next to the comments on each post. I assume it's a virus or spam of some kind, so I thought I'd alert you to it so that you can have the tech people get rid of it.
It turns out that the virus is so powerful that it has infected me, and persuaded me to include it on the site. To quote Wikipedia,
Digg is a community-based news website [that] ... combines social bookmarking, blogging, and syndication with a form of non-hierarchical, democratic editorial control. News stories and websites are submitted by users, and then promoted to the front page through a user-based ranking system....
If you're a digg user, then the digg button makes it easy for you to submit whatever posts of ours you find worth submitting. As Wikipedia says, "Digg has grown large enough that submissions sometimes create a sudden increase of traffic to the 'dugg' website." That's the plan!
UPDATE: Because the fancy digg button caused hangups in some browsers, I've taken it off. The fancy link still have a few glitches, but it ought to be functional for most posts, and harmless for those where it doesn't function. I hope. Keep me posted!
JCG on AMK:
Justice Kennedy testified before the Senate Judiciary Committee today, and the video of his appearance is here. Over at Legalities, Jan Crawford Greenburg offers very interesting commentary about the event.
It was a snowy Valentine's Day in Northeast Ohio. All the schools were closed (including Case). In our neck of the woods, there was no scheduled trash pick up or mail delivery either. UPS, however, made it through.
How Did The Market Change in 2004 and Beyond? We saw a dramatic shift in how preconstruction condos were bought and sold. The condo boom was driven by overly-ambitious speculators, [editor: ya think?] many of whom had been successful in flipping condos in the past. As condo inventories grew and prices rose many speculators realized that further purchasing was increasingly risky. So, buyers just stopped buying. What Kinds of Results Did Condo Flip See? We saw thousands of sellers, and very few buyers. It didn't make sense for us to maintain a marketplace where there were few buyers.
My alma mater, Brandeis University, fresh from controversy over Jimmy Carter's talk there, has apparently established a closed student-faculty committee to monitor speakers on the Middle East. And, oddly enough, a talk by Daniel Pipes on the "Islamization of Europe," which is, by its title, not a talk on the Middle East, is being held up pending review by this committee.
Meanwhile, the university president, Jehuda Reinharz, and his assistant, John Hose, have gone out their way to insult Dr. Pipes, lumping him in with Norman Finkelstein, whose views on matters Jewish and Israeli make Noam Chomsky look like Ariel Sharon. Hose expressed his contempt for the students who invited Finkelstein and Pipes in this way: "These are people who tend to inflame passions, whose mission is not so much discussion and education as it is theater, a show. … If [students] want theater then it's best to go to Spingold [theater]. … But if you want serious discussion, there's lots of resources available for that already at Brandeis." So John Hose, and by extension Jehuda Reinharz--who encouraged the politicization of the university (IMHO) by proclaiming that the politically loaded concept of "social justice" is now part of Brandeis's core mission--are now the arbiters of "serious discussion"? Since when to university officials at serious schools "monitor" what speakers their students are inviting?
Anyway, a few things should be clear: (1) Brandeis claims to be a liberal arts institution open to all views, and thus has no business censoring individuals invited by students or faculty to speak, be it Pipes or Finkelstein; (2) putting Pipes' talk into the "Middle East" category was a lame way of deflecting criticism from the university for discouraging radical students from hosting Finkelstein; and (3) Brandeis is caught in a bind without any way that I can see to resolve it, at least given the ideological priors of the administration. The University is "sponsored" primarily by Jewish donors [Brandeis is a "Jewish-sponsored, nonsectarian" university, named after the Supreme Court Justice and leading American Zionist Louis Brandeis] and alums who, on the whole, are quite favorably inclined toward Israel. Yet Brandeis , as a typical elite liberal arts school in the Northeast, has a large contingent of students, and a much larger contingent of faculty, who vigorously adopt the standard far left line on Israel, and want to use Brandeis resources to promote this perspective (just as their opposites on campus do). The Admnistration wants to keep the former group from knowing too much about the latter group, lest donations suffer.
Take it from an alum: if you want to give money to a prominent left-wing-dominated university, Brandeis is as good a choice as any. If you want to give money to a Jewish institution or cause, unless your donation to Brandeis is very tightly earmarked, giving to Brandeis is throwing away one's money.
For related prior Brandeis controversies, see these posts.
UPDATE: Reinharz responds. He denies comparing Pipes to Finkelstein, but acknowledges that there is indeed a faculty-student-staff committee that screens requests for speakers on the Middle East. He doesn't explain why Pipes's talk on Islam in Europe falls into that category, nor why students should be discouraged from inviting guest speakers regardless of the expertise available within the Brandeis faculty. Thanks to Soccer Dad for the pointer.
FURTHER UPDATE: This story in the Jewish Week more or less confirms my hypothesis. The Carter controversy, among others, is waking up a segment of Brandeis's donor population that Brandeis, while a fine university by standard criteria, is not a "Jewish" institution and indeed hosts a significant presence of individuals hostile to what many would consider the Jewish community's interests and priorities. Again, there is nothing new about all this. When I was a student there twenty years ago, Noam Chomsky and Angela Davis, among many others not exactly considered the best friends of Jewish communal interests, were honored guest speakers who attracted huge, adulatory crowds, and a left-wing student magazine ran a picture spread analogizing the IDF to Nazis. Not that this isn't par for the course at Northeastern "liberal" universities, but donors interested specifically in supporting a Jewish community institution will rarely have much of an interest in subsidizing such things.
By accident, I ran across a court order (see 337 F.3d at 1024) that the following footnote be added to an earlier opinion:
We do not confront here a claim of failure to exercise discretion or manifest injustice.
No-one will be actually confused by this, of course; but at least on first reading, it might strike people the wrong way, as "We do not confront here a claim of failure to exercise (discretion or manifest injustice)" (borrowing the mathematical and computer language meaning of parentheses). The very absurdity of "failure to exercise ... manifest injustice" will prevent actual confusion, but it might cause an odd reaction at first. It might have been better to say,
We do not confront here a claim of failure to exercise discretion or of manifest injustice.
Alternatively, if the order of the options wasn't rhetorically significant, the court could have said,
We do not confront here a claim of manifest injustice or failure to exercise discretion.
But this too might be a bit ambiguous (though perhaps not relevantly so), since it might be interpreted either as
We do not confront here a claim of (manifest injustice or failure to exercise discretion).
We do not confront here (a claim of manifest injustice) or (failure to exercise discretion).
First, a comment on Ilya’s thoughtful response to my post yesterday. Ilya argues that my story about Catholic churches along Chicago’s expressways is more about political power than subjective value. I don’t deny this. Catholics had clout in 1950s Chicago. But, I also stand by my argument that high-subjective value may intensify political opposition to takings (and therefore, increase the likelihood such efforts will succeed). Ilya is also right to point out that many thousands of private homes, with high subjective values, have been taken over the years. As I argue in my paper, subjective value alone may not be enough; homes may not provide the natural rallying points for collective action that the parish churches did.
I agree completely that that the avoidance phenomenon I discussed yesterday will not zero-out owners’ subjective losses. More money (and perhaps public use review) also is needed to protect owners. It is curious, however, that the eminent domain literature focuses almost exclusively on the compensation mandated by the Constitution, rather than the amount of compensation that the Takers actually pay property owners. This literature overlooks the extent to which owners frequently are legally entitled to substantially more than the fair market value of their property. This oversight might be the result of confusion over terminology – the compensation is frequently labeled “relocation assistance”; it also might result from law professors’ constitutional-law-centric orientation. But to even begin a discussion of the compensation question, it is necessary to understand what federal and state laws actually require governments to pay dislocated owners. This post provides a brief outline of these legal entitlements.
Federal Relocation Assistance
Uniform Relocation Assistance and Real Properties Acquisition Act of 1971 (enacted in response to the concern that the individuals displaced by highway and urban renewal projects suffered substantial financial hardship) requires federal agencies, as well as state and local agencies receiving federal funds, to provide relocation assistance whenever they displace property owners. The Uniform Act essentially guarantees that owners receive their property’s replacement value, not its market value, by requiring Takers to ensure that displacees can secure comparable replacement housing,. Takers must take whatever steps are necessary, including, as a last resort, the purchase or construction of a new home “in order to re-house displaces and permit a project to continue in a timely fashion.” Takers must also compensate displaced owners for moving expenses, as well as mortgage, and closing costs; businesses are entitled to receive up to $10,000 for “reestablishment” expenses.
The replacement-dwelling guarantee can substantially improve the housing situation of displaced occupants. Because the replacement dwelling must be “decent, safe, and sanitary,” “adequate in size to accommodate the occupants,” “within the financial means of the displaced person,” and “in a location generally not less desirable than the location of the displaced person’s dwelling” Takers sometimes must secure a larger, more expensive home for a resident—for example, because a family’s current dwelling lacks the appropriate number of bedrooms for their children under local housing codes. Technically, the displacing agency is directed to pay up to $22,500 to enable a homeowner to purchase an appropriate residence. (Tenants are entitled to up to $5,200.) It is fairly clear, however, that that these limits are routinely exceeded.
State Relocation Assistance
Since federal funds help finance many highway and redevelopment projects, the extent of the Uniform Act’s guarantee is quite broad. Moreover, most states extend it to all projects receiving state funds, and a few require it for condemnations by any public entity. In addition, there is a trend toward providing additional compensation for dislocated businesses. For example, direct recovery of business losses, such as a loss of good will, is allowed in a handful of states.
Relocation Assistance In Practice
A handful of empirical studies provide a snapshot of how relocation-assistance programs work in practice. Two themes emerge from these studies: First, the dollar amount of relocation-assistance received by residents displaced by eminent domain usually is quite generous. Second, relocation assistance frequently falls short of fully compensating businesses for their losses. U.S. Department of Transportation’s Relocation Retrospective Study, conducted in 1995, provides the most complete recent picture of residential relocation assistance. This study found that residential property owners were pleased overall with the relocation assistance that they received. In fact, nearly ninety percent of the homeowners (and all but one tenant) surveyed indicated that they were “able to significantly upgrade” their housing.
In contrast, business relocation assistance is almost universally condemned as insufficient. One survey of 224 businesses found that the maxium business-reestablishment payment ($10000) was “almost universally considered inadequate.” Interestingly, business owners’ most significant complaint is that the maximum reestablishment payment falls far short of the costs needed to make modifications required by various regulatory codes, especially the Americans with Disabilities Act. Even in states which have elected to use state funds to exceed the $10,000 maximum, business owners complain that their code-compliance costs are not covered.
Relocation assistance generally provides owners with above-market compensation, but it does not guarantee that they are fully compensated for their losses. To fully understand the nature and extent (if any) of the undercompensation problem, we need to know more about how eminent domain works in practice. We need to understand what happens during pre-condemnation negotiations—the subject of my post tomorrow. We also need to know whether Takers tend to target certain disadvantaged owners (the poor, minorities, the politically powerless), and, if so, whether these owners are also systematically disadvantaged with respect to compensation as well. These empirical questions cry out for more research.
Request for Information on Sporting Use of Pump-Action Shotguns:
I am passing on a request from Herve Senach, president of the French organization Association de Tireurs (ADT), an organization founded in 1901 to promote responsibile uses of firearms, and to support the natural right of self-defense. Mr. Senach asks the following from organizers of sporting events involving pump action shotguns:
Would you be so kind as to send me an official attestation from your organization, stating that you organize, on a regular basis, sports shooting contests with pump-action shotguns, or, even better, reserved to pump-action shotguns.
Please do not let the request for an "official attestation" hold you up; this can be fulfilled by a formal letter from an officer of the organization. You can contact Mr. Senach, who reads and writes English, at "ccra" followed by "@" followed by "infonie.fr". Apparently there is some pressure in France to ban pump action guns, so your timely response would be very helpful.
For a collection of links to French language pro-gun and anti-gun websites, and some articles on gun issues written in French, you might want to check the French language page on my website. The web presence of the ADT, by the way, appears to be mainly in conjunction with the website of another group, the Union Francaise des Amateurs d'Armes (UFA). That website has information about the current French presidential campaign (and front-runner Sarkozy's position that citizens of the French republic should not be allowed to defend themselves with firearms), but not about the new pump-action shotgun issue.
Bad Answers, Good Answers, and Terrific Answers:
Law students around the country recently received their fall semester grades. Students are often puzzled about what professors are looking for on exams, so I thought it might be helpful to offer some thoughts on what makes an answer bad, good, or terrific. Obviously different professors look for different things, but my guess is that what works for me is relatively close to what works for other professors. Abstract guidance on how to answer exam questions is easily found and usually pretty useless, so instead I'm going to conjure up an imaginary law school class with an imaginary exam. I'll then grade an imaginary set of five different answers and explain what makes the different answers better or worse.
Welcome to the Imaginary Law School! Every 1L at ILS takes a mandatory class in "Park and Recreation Law." The class includes coverage of Section 1 of the Park Act, which states that "No vehicles are allowed in the park." The class covered two cases interpreting this section. The first case was State v. Jones, where the court concluded that roller skates were not vehicles. "Although the Park Act does not define the word 'vehicle," the court stated, "we follow the plain meaning of the term. The word 'vehicle' calls to mind a motorized mode of transportation, not a human-powered one." The second case was People v. Thomson, where the court held that a motor home was a vehicle. "We think it clear that Thomson's motor home is a vehicle," the court explained. "The classic example of a vehicle is a car or truck. A motor home is much like a truck in size and complexity, with a small living area connected to it. We can imagine close cases that would force us to draw difficult lines as to the scope of the Act. But this case is not one of them."
Okay, now imagine being the professor who wants to test students on Section 1 of the Park Act as part of the final exam. Being a law professor, you'll create facts that are annoyingly in the middle of these precedents — this forces students to grapple with the facts and the law, and you can grade them on how skillfully they do that. Here is the question you write:
Betty is a law student at ILS who lives off-campus. She often rides to class in a gas-powered scooter, a two-wheeled motorized scooter that has a one-cylinder gasoline engine and a top speed of about 20 miles per hour. One day she decides to ride her scooter through a nearby park on her way to school.
Analyze Betty's liability under the Park Act.
Ok, now imagine that the students have taken the exam and it's time to do some grading. There are five students in the class and therefore five exams to grade. You pick up the first answer:
1. Betty may face liability under the Park Act. However, I think she is in the clear. I don't think her conduct violated the law. There are laws that regulate the park, but here Betty has not violated them. The government may disagree, and it's possible that there is a judge somewhere who would rule in favor of the government. But on the basis of the law, I think it is absolutely clear that Betty is not liable.
Ack, this is a really terrible answer. Why? Well, it doesn't tell you anything. It tells you that there is an issue of park law in the question — which you would expect, this being an examination on park law — and that the student has a view that Betty is not liable. But it doesn't tell you what the legal issue is or how it applies to the facts. Even worse, the answer suggests that the answer to the legal question — whatever it is — is "absolutely clear." You intentionally wrote a question that has no clear answer; a student's announcement that the answer is clear suggests that the student is just missing the boat.
Time to move on to the next exam. Here it is:
2. The issue is whether Betty is liable under Section 1 of the Park Act because she may have brought a "vehicle" into the park. This is a close question. On balance, though, I don't think the scooter was a "vehicle."
This is still a below-average answer, although at least it's an improvement over the first student. On the plus side, the students clearly recognizes the legal issue: specifically, whether the scooter is a "vehicle." But the answer is still very weak; I need to know why the student thinks the issue is hard and why the scooter wasn't a vehicle. There are good reasons and bad reasons to reach that particular conclusion, and I need to hear the reasons so I can tell which are guiding the answer.
Now you pick up answer number three:
3. The issue is whether Betty is liable under Section 1 of the Park Act because she may have brought a "vehicle" into the park. Vehicle is not defined, but under Jones we follow the "plain meaning" of the term. This is a close question; on one hand, a scooter is kind of like a car, but on the other hand, its also pretty different. Under the plain meaning approach, I don't think a scooter is a "vehicle."
This answer is better than number two; it's roughly an average answer. Note that answer 3 did two things that answer 2 did not: first, it used a relevant case to focus the intepretive inquiry (plain meaning under Jones), and second, it suggested a reason why the case was hard (like a car in some ways, not like it in others). On the other hand, it didn't offer a very clear rationale for its conclusion; "pretty similar" and "pretty different" can mean lots of different things, and I need to know what the student means by that.
Now you pick up the fourth exam:
4. Did Betty violate Section 1 of the Park Act because she brought a "vehicle" into the park? Vehicle is not defined, but under Jones we follow the "plain meaning" of the term. That advice is not very helpful here, though as whether a scooter is a vehicle does not seem plain one way or the other. I think the scooter is probably a "vehicle" because it has a motor, which seemed to be a very important factor in the Jones case. Roller skates don't have motors, but Betty's scooter had a one-cylinder gas-powered engine.
This is a very good answer, definitely above-average. The student did everything that that the student did in #3 but added two important steps. First, the student offered a clear rationale as to why one case was distinguishable: in the roller skate case, Jones, the Court had pointed out that vehicle suggests the presence of a motor; in this case, by contrast, there was a motor. Second, the student had the presence to see that the "plain meaning" guidance isn't very helpful in this particular case; while it's a broad principle worth noting, the real answer to this particular question comes from the prior cases and their reasoning.
Now you pick up the last answer. It reads:
5. Betty's liability hinges on whether her motorized scooter was a "vehicle" under Section 1 of the Park Act. The Act does not define vehicle, but Jones and Thomson provide guidance. The facts here are somewhere between those two cases. Unlike Jones's roller skates, Betty's scooter has a one-cylinder gas engine: It is "a motorized mode of transportation, not a human-powered one" under Jones. On the other hand, it is a very modest means of transportation that is far from the size and complexity of a car or truck under Thomson. This seems to be one of the "close cases" mentioned in Thomson, in part because Jones's focus on the powerplant points in one direction and Thomson's focus on size and complexity points in another direction. Scooters are powered but small and simple. It's unclear which matters more, and Betty's liability under Section 1 depends on it.
This is an off-the-charts A+ answer. First, the student directly and accurately identified the precise legal question and exactly what makes it hard. Second, the student explained exactly why the two cases point in different directions without resolving the question. The student clearly gets it: she seems to know the relevant law perfectly and has mastered applying that law to the facts. The answer is so good it's like the student read your mind — this is exactly what you were thinking when you wrote the question. And the student did it all in the context of a high-pressure 3-hour in-class examination. Wow, that's incredible. As they would say on eBay, A++++++++.
So what do these examples tell you? I think the basic advice is that precision and explanations are everything. To get a top grade, a student needs to identify the relevant legal question accurately, and then articulate exactly why applying the law to the facts leads to a particular outcome. Of course, when stated that way, the advice sounds pretty general. At bottom it just means that you need to show your professor that you are an excellent lawyer. Which of course is exactly the point.
Anyway, I hope this is helpful. The hypothetical is of course highly stylized, as it involves only one part of exam-taking (rule application). But I hope it gives students a flavor of what their professors want on exams. And I'm particularly interested in hearing from other professors on whether they agree with my scale or would use a different approach.
Do Takers Avoid "High Subjective Value" Properties or Just Properties Owned by the Politically Powerful?
I agree with most of the points Guest-Blogger Nicole Garnett makes in her twoposts and in her excellent Michigan Law Review article on which they are based. However, I think her analysis of Chicago's decision to avoid condemning Catholic churches in the 1950s does not prove that takers routinely avoid high subjective value properties such as homes and churches. As I explained in this earlier post analyzing her evidence, the Chicago story proves only that local governments will shy away from condemning property owned by politically powerful groups:
The Catholic Church is well-organized for political mobilization and lobbying and had extensive political connections in Chicago at the time, as Garnett notes. Moreover, as Garnett also points out, Catholics were a majority of Chicago voters at the time, and area Catholics had a very strong commitment to their local parish churches. The fact that a politically powerful church to which the majority of local voters belonged was able to resist condemnation politically does not mean that churches with less political clout will be equally successful. Similarly, the fact that Bill Gates' mansion or George W. Bush's ranch is unlikely to be condemned does not mean homeowners in general are not vulnerable to takings - particularly those who are poor or politically weak. Even the Catholic Church has sometimes been victimized by condemnation in areas where it is less politically influential than it was in 1950s Chicago. For example, numerous Catholic churches were condemned in the notorious 1981 Poletown case, which resulted in the forcible displacment of some 4000 people in order to build a new factory for GM....
Politically influential churches will usually be able to force the government to desist, but the politically weak are unlikely to be so fortunate.
Condemnation of churches and other houses of worship belonging to less influential religious groups are quite common, as shown by the examples cited in the Becket Fund for Religious Liberty amicus brief in the Kelo case. So too are condemnations of homes, another type of property that is often considered to have high subjective value. In the last Part of this forthcoming article, I cite data that, by conservative estimates, some 3.5-4 million people have been expelled from their homes since 1949, by federally funded "urban renewal" condemnations alone - a figure that does not include many state and local takings or pure "economic development" takings such as Poletown. Even if Nicole is right to suggest that "high subjective values may correlate with successful efforts to prevent takings," the correlation is weak enough to allow many such condemnations to go forward.
I am not entirely sure to what extent Nicole and I disagree about this. In her last post, she notes that "political actors are particularly responsive to cohesive, well-organized and narrowly-focused coalitions like those that characterized parish-preservation efforts" a circumstance that helps explain why the Chicago churches were so successful in resisting efforts to condemn them; as she puts it, the Chicago churches' success in avoiding condemnation was "unsurprising." Nicole also points out that "disorganized, politically powerless owners" are far less likely to prevail in the political process, and so may require stronger judicial protection than more powerful political actors such as the Catholic Church in Chicago. I agree with both of these points. Depending on how much emphasis she puts on them, it may turn out that there is no real disagreement between us at all. But no doubt she will set me straight if I have misinterpreted her position.
UPDATE: Nicole comments on this post here. Since she agrees that the ability of the Chicago churches to avoid condemnation is a story "more about political power than subjective value" and also notes that high subjective value does not prevent the condemnation of huge numbers of homes, churches and other similar properties, our remaining disagreements on these issues are too minor to take up space debating here. To my mind, the interesting thing about the attempted condemnation of the politically powerful Catholic churches is not that it failed, but why the normally savvy Daley machine thought they could get away with it in the first place.
Takers May Minimize Undercompensation by Not Taking High-Value Properties
In yesterday’s post, I suggested that a failure to consider the role of non-judicial actors (“Takers”) in the eminent domain process may have led legal scholars to overstate the undercompensation problem. A number of the comments following the post assume, incorrectly, that I think that fair-market-value compensation will fully indemnify owners. I agree that a fair-market-value award will often result in undercompensation. What my article argues instead is that scholars mistakenly focus exclusively on the constitutionally mandated measure of damages in an eminent domain action and disregard extra-judicial means of minimizing the undercompensation risk.
Academic discussions tend to assume that there are two ways to minimize the risk of undercompensation. The first is substantive limits on the use of eminent domain. The second is above-market compensation. As I will discuss in my posts tomorrow and Thursday, many owners probably do receive more than the fair market value of their property — because they are entitled to substantial relocation assistance, because they settle on above-market prices during mandatory pre-condemnation negotiations with Takers, or both.
The literature overlooks third way that Takers might minimize uncompensated losses — simply avoid taking properties with high subjective value. The complete lack of attention to this dynamic is unsurprising, but unfortunate. It is unsurprising because the government usually owes a property owner nothing until it takes her property — which is why most of the “takings” literature concentrates on discerning when a taking has occurred, rather than how much is owed once it has. It is unfortunate because the government’s plans frequently are flexible: it can pursue policy objectives by various means, and, in the eminent domain context, with different parcels of property.
My article uses a historical case study — the preservation of Catholic churches along Chicago expressways — to explore how Takers can exercise this flexibility to minimize subjective losses. Over two dozen Catholic churches line these expressways. Driving through the city, it is easy to forget that these churches once served as the spiritual and social hearts of neighborhoods now buried under fourteen lanes of concrete. When the expressways were built in the mid-1950s, over two million Catholics lived in the Archdiocese of Chicago, more than half of them in densely populated urban neighborhoods like the ones dissected by these freeways. Yet, while expressways displaced thousands of parishioners, only five Catholic churches were destroyed. Planners assiduously avoided the Archdiocese’s four hundred other churches.
At one point, the Department of Public Works announced plans to reroute the Kennedy Expressway through St. Stanislaus Kostka Church and school. This proposal enraged Chicago’s Polish Catholics — the Archdiocese’s most important ethnic minority. If, as historians argue, the national parish was “the most important Polish-American institution,” then St. Stanislaus Kostka was the most important national parish in the most Polish of all American cities. The parish website claims that St. Stanislaus was, at the time, “the largest parish in the United States, if not the world, with 8,000 families, totaling 40,000 people” and that it remains “the mother Catholic Church of Polish parishes.” The Polish community quickly organized to oppose the demolition. Cardinal Stritch personally approached the Governor of Illinois, and the expressway was rerouted. The freeway bend around St. Stanislaus is evident on Google earth or any navigation system. (Address for curious readers: 1351 W. Evergreen Ave., Chicago, IL.) According to historian Steven Avella, expressway routes were altered at least three other times to preserve the geographic integrity of parish boundaries.
The fact that highway planners in mid-twentieth century Chicago avoided demolishing Catholic churches is hardly surprising. Neil Komesar has described a “two-force” political model, in which democratic actors are prone to both majoritarian and minoritarian biases, leading to both the “fear of the few” and the “fear of the many.” In Chicago, the individuals who rallied to save expressway churches were, in a sense, both the few and the many. Catholics made up a majority of the City’s voters, and certainly Democratic voters. The city’s powerful Irish Catholic mayor, Richard J. Daley, undoubtedly preferred, when possible, to avoid disrupting the spiritual lives of thousands of co-religionists (who also happened to vote Democratic). Indeed, Mayor Daley was the chair of a Transportation Advisory Group which, in the mid-1960s, issued guidelines indicating that “parish boundaries” should be considered when determining freeway routes.
Majoritarian clout is not the sine qua non of successful political advocacy, however. Another important lesson of the Chicago expressway churches may be that high subjective values may correlate with successful efforts to prevent takings. Subjective attachment provides an incentive to oppose takings and increases the intensity of the opposition. While the episodic nature of physical takings may disadvantage property owners in the political process, public-choice theory also teaches that political actors are particularly responsive to cohesive, well-organized and narrowly-focused coalitions like those that characterized parish-preservation efforts. Just as the subjective value that Catholics attached to parishes undoubtedly increased the intensity of the focus of church-preservation efforts, so also did the affected communities’ cohesiveness reduce impediments to organization.
We need to know more about pre-condemnation planning, but the story of Chicago’s expressway churches provides an opportunity to reflect whether, and when, political actors can be expected to refrain from the use of eminent domain. Assuming that many Takers will reasonably prefer the path of least resistance, the planning process itself might minimize the risk of undercompensation. It will zero it out, however. Indeed, the political process may have the troubling effect of shifting the problem to disorganized, politically powerless owners. Judicial review and/or above-market compensation is needed to protect them.
With some, it took one bad opinion to knock them out. [F]ederal appeals court judge Michael McConnell was a favorite of some conservatives, but he'd written a decision earlier in the spring that would have subjected police officers to sweeping liability for actions while on the job. That was enough for [Deupty White House Counsel William] Kelley.
The decision in question is Lawrence v. Reed, a case that involved a Wyoming Sherriff's decision to order the removal of about 70 unsightly derelict vehicles from a woman's property pursuant to a local ordinance. Under the local ordinance, the police could notify the owner of the vehicle of the city's plan to remove derelict vehicles, and then, after waiting a period, it could remove them. A city fair was coming, and the town council wanted these particular vehicles removed. The Sherriff met with the city attorney and the city manager to discuss how to enforce the ordinance, and they agreed on an arrangement. The Sheriff ended up taking away the 70 vehicles and bringing them to the dump. The owner of the vehciles then sued the government and the sherriff for an unlawful taking of her vehicles without a hearing required by the Due Process clause.
In the Lawrence case, the Sheriff conceded that he had violated the owner's constitutional rights. With the benefit of hindsight, the ordinance was clearly unconstitional, as it allowed the Sheriff to take private property without a hearing required by the Due Process clause. The question in the case was whether the Sheriff was entitled to qualified immunity, on the theory that he reasonably could have believed that his conduct was constitutional. Judge McConnell concluded that the answer was "no," as a reasonable official should have realized that the ordinance was unconstitutional and that he could not take the vehicle without a hearing. He wrote:
What [the Sherriff] really wants us to conclude is that it is generally reasonable to rely on the city attorney’s advice—that it is the attorney’s job, not the police officer’s, to point out when a statutorily authorized course of conduct violates the Constitution. But this is an argument that officers should not be held responsible for knowing the law in the first place, not that consultation with the city attorney somehow interfered with that knowledge. Given [the Sheriff's] concession that his conduct violated Mrs. Lawrence’s clearly established rights, and given the Supreme Court’s admonishment that "a reasonably competent public official should know the law governing his conduct," Harlow, 457 U.S. at 819, Mr. Reed must point to something in his consultation with the city attorney that prevented him from knowing the law. This he has not done.
Judge Hartz dissented, arguing that a reasonable officer would think his actions were legal:
In the present case [the Sheriff] fully informed the City Attorney of the relevant surrounding circumstances and how he intended to proceed. The City Attorney gave his imprimatur. It would be contrary to [existing law] to tell officials like the sheriff that they cannot rely on their chief nonsubordinate government attorneys but must postpone action (to conduct their own research or call a professor at the nearest law school?) or risk being sued.
Marty Lederman asks why the White House ruled out McConnell based on this opinion:
[T]he court's actual holding in Lawrence is exceedingly narrow and fairly uncontroversial, and has almost no precedential effect.
So the mystery, then, is why this decision might have been so troubling to the White House that it served to disqualify Judge McConnell from consideration. Here's one possibility, the only one I can think of that makes any sense at all (unless Greenberg's sources are simply wrong):
. . . [If] Lawrence is properly understood as a case not about the arcane question of when the law is "clearly established" for purposes of qualified immunity, but instead as a decision rejecting the idea that reliance on government counsel is necessarily a "reasonable" ground for engaging in conduct that would otherwise be understood as unlawful, the White House's unease with Judge McConnell becomes much more explicable. This is, after all, an Administration in which officials of the CIA, NSA and Defense Department often balked when requested to engage in conduct of dubious legality ("enhanced" interrogation techniques; warrantless electronic surveillance), only to be assured that they could reasonably rely upon very unorthodox legal advice from the Department of Justice — including, in the case of the August 2002 OLC torture opinion, advice about the Commander-in-Chief Clause that "never once discussed" much of the "applicable constitutional law" (such as the Steel Seizure decision and Little v. Barreme).
. . . [O]ne can easily imagine why Deputy Counsel Kelley might have been concerned by Judge McConnell's reasoning in Lawrence. If one or more Administration officers or employees later found themselves facing possible criminal sanction, and they were to invoke a reliance-on-OLC defense, it would be a bit disconcerting, to say the least, to be confronted with a recent decision of a Justice McConnell stressing that "reasonably competent public officials" should "know the law governing [their] conduct," and that discussion with counsel changes the equation only if the defendants can "point to something in his consultation with the [counsel] that prevented him from knowing the law."
That's a possibility, but I don't think we know enough to tell. (And reasonably enough; it's hard to guess why someone you have never met did something he allegedly did.) Reading over the Lawrence opinion for the first time, though, I'm not sure which side is right. My instincts have me leaning towards Judge Hartz's dissent, but I'm not familiar enough with the cases -- especially the 10th Circuit precedents -- to read any sort of conclusion. However, Judge Hartz's dissent uses pretty strong language, and it could be that Kelley misread the (in)significance of the decision in light of the dissent. And of course this assumes that Greenberg's sources have it right; it's quite possible that they presented a misleading picture of why McConnell was ruled out.
The 19-year-old second year student at Clare College was in hiding today (Friday, 09 February) after printing the racist cartoon and other vile material.
The article is said to be so inflammatory the undergraduate has been taken to a secret location for his own safety.
Today (Friday, 09 February), senior college officials were locked in urgent talks about how the material came to be published and what action to take against the student at the centre of the scandal....
The student magazine, Clareification, printed a cropped copy of the cartoon of the prophet Mohammed next to a photo of the president of the Union of Clare Students.
The cartoon was captioned with the president's name and vice versa.
There was also comment suggesting one was a "violent paedophile" and the other was "a prophet of God, great leader and an example to us all."
The cartoon was the same one which caused riots across the world when it was printed in a Danish newspaper....
The paper had been renamed Crucification for a special edition on religious satire.
The front page included headlines stating: "Ayatollah rethinks stance on misunderstood Rushdie".
On page six, pictures were shown of Muslims holding placards reading: "Behead those who insult Islam" and "Freedom go to Hell."
Enraged students have bombarded the Union of Clare Students with complaints and vice-president of the university's Islamic society described it as "hugely offensive" and "crude unabashed prejudice." ...
Here's my question: I understand the British have a different free speech tradition than ours; they're not bound by our First Amendment jurisprudence; there are indeed some speech restrictions that we forbid but that other democracies can tolerate and still preserve a vibrant marketplace of ideas, and means for democratic self-government.
But can anyone tell me just what European (including English) students, and citizens more broadly, are free to say about Islam without fear of expulsion from college, or even potentially criminal punishment (as has been discussed in other cases of harsh criticism of Islam)? Islam is an ideology, an ideology which may have a great impact on life and government in Europe. For European self-government and public debate to work, Islam needs to be discussed forthrightly and unreservedly much like libertarianism or Socialism or Communism or atheism or Christianity need to be discussed. Doubtless much critical discussion of it is still possible today without the risk of punishment (I even set aside for purposes of this post the risk of violent retaliation by private individuals).
But how is a European to know just what he is free to say, and what may be condemned as "race-hate" or "anti-Islamic material" or whatever else? Is a publication, for instance, free to republish the Mohammed cartoons in order to discuss whether they are indeed "racist," and for that matter what they mean? Is a publication free to publish any images of Mohammed, or is it barred from doing so on the grounds that some Muslims might find even non-hostile images insulting? What exactly can be said without the reasonable fear of punishment?
This afternoon, Kenneth Roth, executive director of Human Rights Watch, is delivering the Klatsky Seminar on Human Rights at the Case Western Reserve University School of Law on the subject "Global Human Rights Leadership: Who Will Fill the Void Left by the U.S.?" The event will be webcast here. I can't make the event, but Mr. Roth is giving a faculty workshop right now that I am live blogging (with his permission). [I will note when I've stopped adding and revising this post.]
Human Rights Watch operates in approximately 70 countries to monitor human rights trends globally. It is funded solely by private donations. Of particular concern to Mr. Roth right now is the relative decline of U.S. leadership on human rights and the failure, thus far, of other nations (such as those in the E.U. to fill the void). Mr. Roth is also unconvinced that the counter-terrorism requires rethinking basic human rights principles. Another issue confronting HRW is how “democracy promotion” has become synonymous with “regime change” in many parts of the world, to the detriment of the former. He is also concerned about the fitful progress of international human rights mechanisms.
Roth notes that law school treats litigation as the primary means of vindicating rights. This is often true in nations like the United States, but less so in developing nations lacking an independent judiciary. Still, Roth argues, the American court system has been less vigilant than it should be in vindicating the rights of particularly unpopular groups, such as prisoners and migrants. For this reason, HRW has sought to document broader patterns that document rights problems, such as prison rape. (See, e.g., Instapundit’s coverage of the issue here).
Asked about whether it is appropriate to assert universal human rights given the diversity of global cultures and claims that it is cultural hegemony to impose Western conceptions of human rights on other cultures, Roth made two points. First, the positive law answer is that most governments have ratified basic human rights treaties, so even if one rejects the idea of transcendent human rights, there is a case for holding governments to their commitments. Differing cultural values become an issue most often in the context of gender rights and religious freedom, Roth observed, and HRW tries to be sensitive to differing cultural values. Still, he acknowledged, a human rights advocate cannot be “neutral,” an inevitably takes sides in cultural disputes about whether to respect certain rights.
My colleague Michael Scharf, an expert on the Iraqi war crimes tribunal (see here) asked about HRW's work in this area. Specifically, HRW’s report on the Iraqi tribunal came out only days before the final judgment was issues and, it turned out, some of the claims were answered by the tribunal’s judgment. Roth explained that HRW wanted to put out one report while the trial was ongoing, but will also be publishing another, more-in-depth report of the written opinion, which is “a complete mess” according to Roth. He expects it will be out within a month or so.
Asked about treatment and prosecution of enemy combatants, Roth claimed that if there was a straight vote today in the U.S. Senate, the restrictions on habeas corpus petitions contained in the Military Commissions Act would be repealed now. He believes Congress is taking more of a wait-and-see posture on the military commissions. He expects the commissions to be problematic, particularly given the effort to make coerced testimony admissible, but it will depend on the quality of the judges.
I could not resist asking Roth about the Stimson flap, and whether he believed Stimson’s comments represented an official or unofficial effort to discourage pro bono representation of detainees. Roth answered that his impression was Stimson was speaking out of school. Roth said higher-ups in the administration are “not that dumb” to endorse such comments. Further, Roth noted, Stimson’s comments were quickly disavowed by higher ups.
Roth rejects military intervention short of an urgent need to prevent mass slaughter. Therefore, in his view, the Iraqi war could not be justified on human rights grounds. Interestingly enough, he suggested that human rights considerations should play a role in deciding whether to withdraw troops from Iraq. He also thinks that greater resort to prosecutions of militia leaders and others could reduce sectarian violence.
Roth defended HRW against charges of bias in its reporting on the Israeli-Hezbollah conflict. According to Roth, HRW’s allegations against Israel, such as for indiscriminate bombing of southern Lebanon at the close of the conflict, were accurate, and that Israel’s conduct was clearly contrary to human rights principles. Roth acknowledged that most of Israel’s attacks were precision attacks, and said that there was indeed evidence that Hezbollah did use civilian cover in some instances, but that Israeli attacks still produced substantial civilian casualties. According to Roth, Israel effectively treated parts of southern Lebanon as a “free-fire zone.” Faced with these charges, Roth noted, Israel and its defenders attacked HRW, often with “garbage” and “not honest” arguments against HRW’s reports. (My co-blogger David Bernstein may have a different perspective on this issue.)
The final question was about the emerging concept of "ecological genocide." Roth noted that if environmental change is used as a means of killing populations, he did not think the concept was particularly controversial. He went on, however, to say that he is "somewhat conservative" in how he defines genocide, and is wary of using the term to dscribe the use environmental degradation to alter a culture or traditional way of life. Such an expansive definition "cheapens the concept," he said, as genocide should be confined to the actual killing of people.
Overall it was an interesting session. I don't agree with Roth on everything, but I appreciated his thoughtfulness and candor. [End]
My encyclopedia essay on "Consumer Bankruptcy," forthcoming in the Encyclopedia of Law and Society: American and Global Perspectives, is now available for download on SSRN.
Here's the Abstract:
This is the entry for “Consumer Bankruptcy, Doctrinal Issues In” in the Encyclopedia of Law and Society: American and Global Perspectives. This entry provides a summary and overview of the law and policy of consumer bankruptcy. First, it summarizes the American bankruptcy law legal regime. Second, it explores the competing hypotheses for the rise in bankruptcy filings during the past three decades, contrasting the “traditional” or “distress” model of consumer bankruptcy with the “incentives” or economic model. Third, it describes the recent amendments to the American consumer bankruptcy regime. Finally, it provides a comparative view of consumer bankruptcy law by comparing the American system and trends in American bankruptcy law and policy with Europe and other areas of the world.
As with my entry on Evolutionary Psychology, this essay merely scratches the surface of this complex topic. Nonetheless, I hope it provides a useful overview and introduction to the field.
Granting the District of Columbia a vote in Congress would likely be unconstitutional concludes a just-released report by the Congressional Research Service. The Washington Post reports here, and the CRS report itself is available here.
The Washington Postreports that the fish you order is not always the fish you get. Investigators ordered grouper at 24 Florida restaurants, but genetic testing revealed it was only the real thing seven times. Accoding to the story, the high demand for grouper and other popular fish has caused a surge in seafood imports, and that much imported fish is not what the sellers claim. In most cases it was Emperor fish or Asian Catfish. There is good news, however. Major food distributors, such as Sysco, have begun random testing of their fish supplies to ensure authenticity, and this appears to be reducing the rate of fish fraud.
John Tierney thinks Richard Branson's $25 million prize for a technology that removes carbon dioxide from the air is a good back up plan.
Vacuuming up our carbon-dioxide mess sounds improbable now, but so did the idea of precisely determining a ship’s longitude in 1714, when the British government offered a prize that led to a revolutionary tool for navigators, the chronometer. Private spaceships seemed impractical a decade ago, but the $10 million Ansari X Prize spurred competitors to spend more than $100 million, and the winning design will soon be taking tourists into space.
If governments and other moguls throw in more money, the new Virgin Earth Challenge may be the start of competitions that ultimately yield nanobots or microbes capable of gobbling up carbon dioxide. As far-fetched as it seems today, removing carbon dioxide from the atmosphere could turn out to be a lot more practical than the alternative: persuading six billion people to stop putting it there.
Can Congress Force the Supreme Court to Televise its Oral Arguments?
Like Orin Kerr, Marty Lederman, and Mike Rappaport, I believe that the answer to this question is "Yes." This consensus now covers conservatives (Mike), moderates (Orin), liberals (Marty), and libertarians (me), so it has to be right!
I have a slightly different rationale for my view than any of my esteemed colleagues. Article III, Section 2, Clause 3 of the Constitution says that most of the the Supreme Court's jurisdiction must be exercised "under such Regulations as the Congress shall make." Presumably, this includes the power to establish procedural rules for the Court's proceedings, including such matters as the timing of Supreme Court terms (which is indeed regulated by Congressional statute, as Orin notes). To be sure, Congress cannot use this power to establish "regulations" that violate other explicit provisions of the Constitution. For example, it could not establish a regulation depriving justices of their life tenure, because life tenure is specifically guaranteed by Article III, Section 1. On the other hand, there is no provision of the Constitution that forbids Congress to regulate the degree of publicity accorded to Supreme Court arguments. So the justices would have to obey a congressional law mandating openness to TV coverage of oral arguments - however much it might annoy them.
Technically speaking, this Clause only applies only to cases where the Supreme Court has "appellate jurisdiction" and not to the extremely rare cases (e.g. - boundary disputes between states), where the Court's original jurisdiction applies. However, even if Congress lacks the power to force the Court to televise the latter, it would still be be able to allow TV coverage of over 95% of the Court's docket.
On a related note, it is worth considering the possibility that the Supremes' motive for banning TV coverage is not as high-minded as we might think. Several years ago, the then-Supreme Court correspondent for one of the major TV networks told me that the main reason for the justices' strong opposition to TV coverage was their desire to avoid being recognized by members of the general public in the streets - especially people who might harangue them about their decisions.
According to this reporter, the justices value the adulation and recognition they get from the legal and political community, but also like the idea of being able to remain anonymous on the street or other public venues. Of course, I do not know if this individual's interpretation of events is correct or not, though it seems credible to me. In any event, the justices' desire for a degree of privacy and anonymity (if that is indeed their motive for opposing TV coverage) is perfectly understandable, and I don't blame them for it. I do not, however, believe that it outweighs the public interest in televising oral arguments.
Another Federalist of the Left - Radical Scholar Gar Alperovitz on Decentralization:
Prominent left-wing radical scholar and pundit Gar Alperovitz has an interesting NY Times article arguing that the United States and other large nations are overly centralized and should devolve more political power to the state or regiona level (hat tip: Ethan Leib). Here's a brief excerpt:
The United States is almost certainly too big to be a meaningful democracy. What does “participatory democracy” mean in a continent? Sooner or later, a profound, probably regional, decentralization of the federal system may be all but inevitable.
A recent study by the economists Alberto Alesina of Harvard and Enrico Spolaore of Tufts demonstrates that the bigger the nation, the harder it becomes for the government to meet the needs of its dispersed population. Regions that don’t feel well served by the government’s distribution of goods and services then have an incentive to take independent action . . .
James Madison, the architect of the United States Constitution, understood these problems all too well. Madison is usually viewed as favoring constructing the nation on a large scale. What he urged, in fact, was that a nation of reasonable size had advantages over a very small one. But writing to Jefferson at a time when the population of the United States was a mere four million, Madison expressed concern that if the nation grew too big, elites at the center would divide and conquer a widely dispersed population, producing “tyranny.”
Given the large ideological differences between us, it is not surprising that Alperovitz's argument for decentralization is in many respects different from mine. For example, I think he is wrong to claim that the US is becoming "ungovernable" (at least in any meaningful sense of the term), and I'm also skeptical of claims that the harms of centralization are to any significant extent caused by the allegedly corporate-dominated media.
But it is noteworthy that there are major similarities as well between our two perspectives on centralization as well. I definitely agree with Alperovitz's argument that a unitary central government will be less able to meet the needs of a large and highly diverse society than a more decentralized one. I also agree that regional compacts between states are a valuable and often superior alternative to federal government intervention. More generally, Alperovitz may be right to predict large states such as California will increasingly challenge federal power. Overall, the similarities between Alperovitz's perspective on this issue and my own probably outweigh the differences - a striking result given that we disagree on almost everything else.
Alperovitz's article is part of a growing recent trend towards left-wing interest in federalism and decentralization that I have noted in the past (see, e.g, here, here, and the last part of this article).
The recent Democratic takeover of Congress may to some extent diminish that interest, to the extent that it was the result of the assertion of federal power to serve conservative interests by the Bush Administration and the Republican-controlled Congress of 2003-2006. However, given the narrowness of the Democratic majorities and the likelihood that conservatives will continue to have great influence over the federal government, the new interest in "progressive federalism" is unlikely to just disappear.
"If You Had To Give Up Two of [Internet, TV, and Radio], Which Two Would It Be?"
So asked a Zogby poll conducted late last months. Here's how the numbers broke down by age.
% who included Internet
% who included TV
% who included radio
Approximate margin of error (95% confidence interval)
The 18-24 numbers seem especially striking, both as to their unwillingness to give up the Internet and as to their willingness to give up TV. Query how honest the answers are -- maybe some people just like to think of themselves as preferring the Internet, or don't like to think of themselves as being hooked on TV -- but if they are honest, they seem like a pretty big deal.
And, no, I'm not sure why the numbers don't quite add up to 200%, especially since the none / refused to state percentages were very low; I expect that there were some people who gave only one answer rather than two, but weren't recorded as none or refused to state.
Many thanks to Eugene for inviting me to blog about The Neglected Political Economy of Eminent Domain. As Eugene notes, I come to this subject with strong priors – I worked for the Institute for Justice (Susette Kelo’s attorneys), and I disagree with (although I was not surprised by) the holding in the Kelo case. In a previous article, I also used the undercompensation risk to justify strong public-use review. Thus, it is fair to say that I was surprised, upon further investigation, to reach the conclusion stated in the article—that legal scholars may overestimate the extent of the undercompensation problem.
I’ll divide my discussion into five posts. This first post explains why legal scholars assume that owners are undercompensated when their property is taken by eminent domain; it also argues that traditional discussions of eminent domain have been too court-centric, leading scholars to overlook the critical role that non-judicial government actors (“Takers”, if you will) play in the eminent domain process. On Tuesday, Wednesday, and Thursday, my posts will discuss three ways that “Takers” may minimize undercompensation. Finally, on Friday, I will explain why I believe that so-called “economic development takings” are problematic even if most owners receive above-market compensation.
The “Undercompensation Problem”
Scholarly concern about undercompensation flows from the fact that the constitutionally mandated measure of compensation in an eminent domain action — i.e, the property’s fair market value — can fail to indemnify owners fully. As Lee Fennell has helpfully described, the losses suffered by an owner whose property is taken by eminent domain may have both a “compensated increment” (the fair market value award) and an “uncompensated increment” (the owner’s losses exceeding that award). The "uncompensated increment" may be made up of any (or all) of the following losses:
• Economic Losses: Fair-market-value compensation does not cover relocation expenses, good will associated with a business’s location; it may also fall short of replacement value. Eminent domain also deprives owners of the gains from trade that a market transaction might generate. The inability to say “no” unquestionably leaves many owners worse off than if they had freely negotiated a purchase price. (This is not surprising. After all, the need to avoid holdouts strategically seeking unjust gains from trade is a common justification for eminent domain.)
• Subjective Losses: An owner may value her property more its market price. Cognitive psychologists and experimental economists have found that possession alone generates an “endowment effect” – i.e., individuals consistently demand more to part with an entitlement than they would be willing to pay for it in the first instance. While this “offer-ask” disparity only trivially affects most markets, it is greatest for episodic events such as an eminent domain action. Additionally, an owner’s sentimental attachment to her property - for example, the attachment resulting from the property's connection to family and community relationships - may widen this disparity between subjective- and market-value.
• Dignitary Losses: Carol Rose has observed that “there is something about land that makes you think that when you own it, it is really, really yours.” Perhaps for this reason, targets of eminent domain may suffer what can be broadly categorized as “dignitary harms.” Owners may feel unsettled upon learning that the government plans to take their property. Expanding the scope of the takings power may increase all property owners’ feelings of vulnerability. As Justice O’Connor observed in Kelo, “The specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.”
Owners also may attach independent, non-instrumental significance to the economic autonomy that property guarantees. The loss of economic autonomy may be particularly upsetting in the economic development context, for at least two related reasons: First, owners may be offended by the government’s implicit suggestion that the current use of their property is less than socially optimal and that some other private owner would put it to a “better” use. Second, property owners may feel that the government has treated them unfairly vis-à-vis other owners. To borrow from Saul Levmore’s work in the regulatory takings context, every exercise of eminent domain “singles out” individual property owners to bear the cost of broader societal goals. The knowledge that the government could have advanced its plans by taking someone else’s property may leave property owners asking “why me”?
A Non-Court-Centric Approach to Understanding Eminent Domain
The possibility that property owners may be undercompensated in the eminent domain process is frequently cited in the literature discussing the public-use problem. Some commentators—including myself—cite the potential for undercompensation as one reason that judicial policing of the boundary between “public” and “private” takings is needed. Others—most recently Professors James Krier and Chrisopher Serkin—have explicitly suggested additional compensation as an alternative to judicial review of public-use claims. Most of the eminent domain literature, however, ignores the important role of non-judicial government actors (the people that I call “Takers”) in the eminent domain process. Understanding Takers’ role is important because judges play only a bit part in the eminent domain process. Takers, not judges, shape projects, identify the property needed to complete them, and negotiate with property owners prior to instituting formal eminent domain actions. Indeed, in the vast majority of cases, formal eminent domain proceedings are never commenced.
The universal disregard for how eminent domain works outside of the courtroom may have led previous commentators (again, including myself) to overstate the undercompensation problem. Takers operate under incentives that should minimize undercompensation: They need to avoid holdouts and the political fallout from negative publicity. They are legally obligated to bargain with property owners and penalized financially if these negotiations fail. And they almost always are legally required to provide substantial relocation assistance to displaced owners. While the evidence presented here is incomplete—further study is in order—my article represents an important first step toward understanding how Takers’ behavior shapes the nature and extent of the undercompensation problem.
Can Congress Force the Supreme Court to Televise Proceedings?:
Robert Barnes has an interesting article in the Washington Post about proposals for federal legislation to require Supreme Court arguments to be televised. (LvHB) I gather some readers will wonder, can Congress do that? Can they force the Supreme Court to allow cameras in the courtroom?
This isn't at all my area, so what follows is just amateurish speculation. But off the top of my head I would think the answer is clearly "yes." Congress has a great deal of control over how the Court operates. For example, Congress determines the number of Justices, see 28 U.S.C. § 1, when the Term opens, 28 U.S.C. § 2, and allowances for law clerks, 28 U.S.C. § 675. Congress also requires that the Court's opinions must be bound togther and published as volumes of the United States Reports "as soon as practicable after rendition." 28 U.S.C.A. § 411. As far as I know, none of these sorts of regulations have ever been suggested to violate the Constitution.
The only counterargument I can think of is that perhaps control over broadcasting proceedings is somehow part of "the judicial power." The Constitution explicitly states that "the Judicial Power of the United States, shall be vested in one supreme Court," Article III, Section 1, and if the Constitution vests the judicial power in the Court then Congress cannot take it away. But I have always understood the notion of "judicial power" to mean the power to decide cases and controversies, Cf. Murray' Lessee v. Hoboken Land & Improvement Co., 18 How. 272 (1856), not the power to hear oral arguments in a setting that is more or less public.
As I said, though, this isn't my area; I hope those who work in this area can chime in.
Nicole teaches property, land use planning, local government law, and an urban property law seminar. Before going into teaching she clerked for Justice Thomas and for Judge Morris Arnold (Eighth Circuit), and worked for Institute for Justice, a top libertarian public interest law firm, which has had a particular interest in economic rights and eminent domain abuse. She has written many articles, including Save the Cities, Stop the Suburbs? (Yale Law Journal), The Neglected Political Economy of Eminent Domain (Michigan Law Review), Relocating Disorder (Virginia Law Review), Ordering (And Order In) The City (Stanford Law Review), and more.
This Article challenges a foundational assumption about eminent domain -- namely, that owners are systematically undercompensated because they receive only fair market value for their property. The Article shows that, in fact, scholars have overstated the undercompensation problem because they have focused on the compensation required by the Constitution, rather than on the actual mechanics of eminent domain.
The Article examines three ways that Takers (i.e., non-judicial actors in the eminent domain process) minimize undercompensation. First, Takers may avoid taking high-subjective-value properties. Second, Takers frequently must pay more compensation in the form of relocation assistance. Third, Takers and property owners may voluntarily settle on above-market compensation during pre-condemnation negotiations.
The Article concludes by reflecting upon current efforts to reform eminent domain legislatively. Prominent legal scholars recently have proposed compensation-based reforms as an alternative to constraints on the use of eminent domain. The final Part rejects this suggestion, arguing that there are two problems, unique to takings raising public use questions, that more money cannot solve: First, high compensation levels may undermine political resistance to questionable projects; second, private takings may generate non-instrumental harms that will persist even as compensation increases.
One brief note: As you can gather from the abstract, the article reports that eminent domain abuse is not as serious a problem as some have suggested. Please keep in mind that the article comes from someone who has studied eminent domain law quite carefully, and who comes at the subject with a respect and sympathy for private property rights. Naturally, this doesn't mean that the article is correct. But it should, I hope, remind people to avoid casual assumptions of the "she must be some left-wing law professor who's just into socialism" / "she must be some big government fan who's into massive social engineering projects" variety.
I've been trying to block a commenter who goes by the unlikely name of ReVonna LaSchatze; the commenter has personally insulted other commenters, and in a pretty vulgar way. Unfortunately, LaSchatze's posts come from different IP addresses, and don't use a fixed comment account that I can block. (To make things convenient for commenters, I don't require people to set up comment accounts, though I may have to change that.)
My solution to the problem has been to delete LaSchatze's comments, which has required me to delete or edit other comments that respond to LaSchatze. I'd rather not have to do that, because those responses come from valued commenters and took some time for them to post. So the request: Please don't respond to LaSchatze's comments.
By the way, just to remind people why I take the view I do about the need to maintain civility in comments, and the propriety of deleting commenters: Comment threads (unlike, say, all the videos on YouTube or generally even books in a bookstore) are a coherent conversation; for the conversation to be readable and pleasant to participate in, people have to maintain some minimum level of politeness. The analogy I give is a party that I host -- if people are rude enough to other guests, they won't be invited back, because that's how one keeps parties pleasant. I generally don't try to exclude people for their viewpoints, though I reserve the right to do that if the views are nasty enough. But I have and will exclude people who express their viewpoints in needlessly offensive ways, for instance by personally insulting fellow commenters.
But never fear, the North Korean government has apparently found a way to increase food production at last: giant rabbits! According to the Washington Post, North Korea recently purchased six giant rabbits from a German breeder in the hope that they can turn them into an important new source of food (hat tip: Tom Palmer). And I have to admit that the German giant rabbits are pretty cool:
Unfortunately, centrally planned rabbit-breeding is no more likely to be efficient than other forms of central planning. As the Post explains, breeding giant rabbits for food is likely to be far more expensive and inefficient than alternative options, including even relying on smaller, less voracious rabbit breeds:
The Koreans' choice of rabbits has other German breeders scratching their heads.
Karl-Heinz Heitz, chairman of the State Association of Rabbit Breeders in Berlin-Brandenburg, said that German gray giants are hard to beat for size but that they aren't cheap to fatten up. It takes wheelbarrow-loads of hay, vegetables and rabbit chow to bring them to maturity.
"Let me say this: There are certainly breeds that are more economically profitable; I do not know why the North Koreans wanted this one," said Heitz . . .
Breeds such as New Zealand red or big light silver or Vienna blue are only half as big but are more cost-effective to raise. "You do not have to put in as much to get out a fair amount of meat," Heitz said.
Communist economic planners have a long history of funding large-scale but extraordinarily inefficient projects. For example, Joseph Stalin ordered the construction of large numbers of giant factories that routinely consumed massive amounts of resources worth far more than what they produced. Totalitarian regimes of both the right and the left have a well-known propensity for gigantism. However, until now neither Uncle Joe nor his various imitators ever thought to raise giant rabbits! To my knowledge, at least, the North Korean effort is a first. Another great milestone for Comrade Dear Leader Kim Jong Il and his Songun-Based Revolutionary Line.
I don't usually look at the N.Y. Times's wedding announcements (really), but I happened upon one today, involving an older couple reunited decades after a teenage romance. Very nice. But if I follow the story correctly, the groom hooked up with the bride well before he was separated from his wife of about thirty years, and apparently well before he made it clear to her that he was pursuing other relationships. The Times's story contains this choice line: "He suggested to Dr. Drager that they meet in Las Vegas the next year and go on a group river-rafting trip through the Grand Canyon. He told his wife about the trip but not about his companion." I understand these things happen, I haven't walked a mile in their shoes, I'm not being judgmental, I certainly wouldn't want my private life to be judged by others, and so forth. But what interests me is how social mores have changed. When did such things become not only not at least somewhat embarrassing, but something a prominent doctor (the bride) would willingly (eagerly?) share with friends, family, and millions of strangers? And isn't this the sort of things that newspapers would have refused to publish in their wedding pages not too long ago?
Lithwick's claim is that the Supreme Court "looks grievously out of step" with public opinion on the death penalty: "In a curious application of Newtonian physics, public and state support for capital punishment is steadily declining in America just as the resolve to maintain the death penalty seems to be hardening" at the Supreme Court.
But what's the evidence for this? As Lithwick acknowledges midway through her column, a majority of the Court has had surprising success narrowing when capital punishment can be imposed. Still, Lithwick tries to make the case that the Court is "out of step" in the sense of having "resolve" to maintain the death penalty. As far as I can tell, here are the four examples she uses to support the claim:
1. In one recent case the Supreme Court overturned a capital conviction but Chief Justice Roberts wrote a dissent.
2. In a 2005 case the Court overturned another capital conviction, reversing a decision written by then-Judge Samuel Alito.
3. In a capital case last year, Justice Scalia wrote a concurrence that included very heated rhetoric.
4. In a recent oral argument, Chief Justice Roberts asked a question that seemed to question some of the Court's recent decisions that increased judicial scrutiny of the death penalty.
I'm not sure why any of these examples are supposed to establish that the Court is out of step with public opinion (assuming, for purposes of this post, that this would be a criticism if true). Granted, it suggests that some individual Justices favor narrowing the role of the courts in the implementation of the death penalty. But none of the evidence actually seems to go to the question of what a majority of the Court has done. And to the extent Lithwick's point is that the Court may change its direction in the future, surely the same can be said about the direction of public opinion.
Dahlia Lithwick has an article in today's Washington Post on "The Dying Death Penalty?" Lithiwck posits a "curious" development: Political leaders and the American public seems to have greater reservations about the death penalty, while the Supreme Court seems less likely than ever to impose constitutional constraints on how capital punishment is administered.
In a curious application of Newtonian physics, public and state support for capital punishment is steadily declining in America just as the resolve to maintain the death penalty seems to be hardening in the one arena where death-penalty policy once had seemed poised to change: the Supreme Court.
After summarizing the changes in public opinion and the grounds for questioning capital punishment, Lithick concludes:
But if for most Americans the time for stubborn certainty about the death penalty, at least as it's currently practiced, seems to be over, a court that is more certain than ever of its fundamental fairness looks grievously out of step with an American public willing to recognize the dangers of injustice, error and doubt.
The problem with Lithwick's formulation is its utter failure to distinguish between law and policy. For Lithwick, what makes some justices "out of step" with the American public is their unwillingness to curtail or invalidate capital punishment and belief that "if the death penalty in this country needs fixing, the state legislatures should do it, a process that's already beginning to happen." But this hardly follows. Indeed, the Court's death penalty jurisprudence should be determined by the justices' understanding of what the Constitution requires, not their feelings, misgivings, or personal sense of justice.
There are certainly grounds for misgivings about the death penalty as currently practiced, but that does not mean there is any legitimate basis for the Supreme Court to constrain or limit its use any more than it already has. And the Court is hardly "out of step" with the public if it leaves the American people ample ability to enact its policy preferences into law through the Democratic process. Indeed, what makes the Court "out of step" is when it engages in the opposite - prohibiting democratic majorities from resolving contentious political issues through their representatives and the democratic process.
I've known Brian since we attended an IHS seminar together in 1988. What, no comp review copy, Brian? Glenn Reynolds got one! Trivia note: Also attending that seminar was future Weekend Today Show anchor and Katie Couric sub Jodi Applegate, whom all the guys developed a crush on.
UPDATE: And the second most famous person attending that seminar was future Federal Election Commission Chairman Brad Smith.
Sunday Song Lyric:
I've been back home in Philadelphia this weekend for a party, and to show my in-laws around. We hit all the essential places (Independence Hall, Reading Terminal Market, Jim's Steaks, etc.). There's lots of great music from Philadelphia -- enough that I believe Philadelphia was more deserving of the Rock and Roll Hall of Fame than Cleveland. There are even some songs about my hometown. While walking near Rittenhouse Square, Elton John's "Philadelphia Freedom" came to mind, so I decided to make it this week's lyric. The song was a big hit in the 1970s, and has an interesting history, and here is how it begins.
I used to be a rolling stone
You know if the cause was right
I'd leave to find the answer on the road
I used to be a heart beating for someone
But the times have changed
The less I say the more my work gets done
`Cause I live and breathe this Philadelphia freedom
From the day that I was born I've waved the flag
Philadelphia freedom took me knee-high to a man
Yeah gave me peace of mind my daddy never had
The full lyrics, credited to long-time Elton John collaborator Bernie Taupin, are here.
Where Is John Galt? Our tour through the Law of Atlas Shrugged begins with this question, which was the heart of the noteworthy case Temple v. John Galt Co. The Temples (note the antirational religious connection) sued the John Galt Co., but failed in their attempts to serve process by mail. Had they been better read, they would have realized the intrepid hero was harder to find than that. Suffice it to say that, in the ringing words of the Court of Appeals, "the trial court filed a judgment entry, granting John Galt's motion and vacating the default judgment."
But this just returns us to the more familiar Who Is John Galt? Is it indeed the John Galt Co.? Or is it John Galt Associates, of Pakwood Industries v. John Galt Associates? Here, John Galt, a commercial landlord who refused to let tenant Pakwood assign a commercial lease, won again. Galt's refusal to assign, the court said, was "reasonable." (But of course.) Pakwood should consider it lucky that Galt agreed to go to court, rather than just dynamiting the whole property. Whoops, wrong book.
Who else might John Galt be? Surely not John Galt, Ltd. of Assistant United States Trustee v. John Galt, Ltd. or John Galt Energy, Inc. of In re John Galt Energy, Inc. If there's one thing we know, it's that John Galt would never flee his contractual obligations by declaring bankruptcy.
Could he be the plaintiff in Galt v. City of Sparks? The decision is a one-line order which provides only the tantalizing clue that a co-defendant was Policeman Henderson (Badge # 9516 of the City of Sparks). That John, always getting into trouble. Or perhaps the answer lies in Rolfe v. Galt, where John and his wife Lorraine Galt -- how come we never heard about her? -- triumphed over a baseless personal injury lawsuit.
Curiously, I could find no appearance by the rest of John's merry band in the published cases, except for one shadowy figure: none other than Ragnar Danneskjold. Danneskjold v. Brown acknowledges that Ragnar was a veteran (naturally), though apparently one suffering from post-traumatic stress disorder, which seems much less like the Ragnar we know and love.
Ragnar next shows up in Danneskjold v. Hausrath, the case that first revealed this fascinating subject to your humble author, who stumbled on it when doing research for an article he was writing. Here Danneskjold is found to be an inmate at Attica State Prison, suing to challenge, of all things, the Prison's failure to pay him minimum wage for certain work that he was doing. Such a suit may at first sound distinctly unobjectivist, but bear in mind that Danneskjold is demanding a minimum wage from the government, not a private business. (Danneskjold's crime of conviction is not indicated, but since he's being kept in state prison, it probably doesn't involve the high seas -- or could there be an inter-governmental conspiracy afoot?)
Finally, we return to the questions we started with: Where Is John Galt? Who Is John Galt? And a new one, What Ever Became of John Galt?
Here is where John's story draws to a close; for though he emerged a resounding winner from the book, everyone, even (perhaps especially) man qua man, loses in the end. But what a fitting end, as chronicled in State ex rel. Smith v. Greene. "On September 14, 1970," the court explains, "Tri-State Motor Transit was struck by members of Teamsters Local 823." On September 30, "a truck, carrying explosives, owned by Tri-State Motor Transit Company and driven by Galt was struck by rifle fire and exploded. Galt was killed and his clothing, pocket book, money and personal effects, valued at $100.00 were destroyed." "[T]wo teamsters [were] subsequently convicted for the second degree murder of Galt."
Even in death Galt struck a blow for what he held most dear; for State ex rel. Smith is a case about private property. "[T]he substance of the claim here is not wrongful death," the Court said: "It is property damage." And that the "value of the property destroyed ... was small" could make no difference: The "wrong is just as great as the wrong done to the owner of property of great value."
Property is property. Not only actual damages, but even punitive ones were available, see id. at 60, to punish those who tamper with this sacred principle. Ayn Rand couldn't have written it better herself.
There's a famous history to this song that makes it all the more powerful as a work of art. It represented Coltrane's personal reaction to hearing about a church bombing in Alabama in the fall of 1963. As C. Michael Bailey explains in reference to the studio version:
In the early morning of Sunday, September 15, 1963, a gaggle of malcontents planted 12 sticks of dynamite in a window well outside the 16th Street Baptist Church in Birmingham, Alabama. The dynamite exploded eight hours later killing Denise McNair, 11, and Cynthia Wesley, Carole Robertson and Addie Mae Collins, all 14, in the process galvanizing the Civil Rights Movement. Three months later, on November 18, 1963, John Coltrane stepped up to the microphone in fabled Englewood, NJ studio of one Rudy Van Gelder and over a McCoy Tyner Tremolo, blew his searing and definitive statement on the subject of the bombing-- "Alabama."
Where to go to hear more? If you like this performance but you're new to jazz, I would probably start with My Favorite Things, which is the most accessible Coltrane/Tyner pairing. The studio version of Alabama appears on Live at Birdland, which is a very strong album although an eclectic mix of performances. Finally, the undisputed masterpiece of the Coltrane quartet is A Love Supreme, which is justly celebrated as one of the top jazz albums of all time.
YouTube Removes Atheist's Slide Show of Quotes from the Koran:
Nick Gisburne put up a slide show of Koran quotes — intended by him to illustrate the Koran's violent or intolerant teachings — on YouTube. He had done the same as to the Bible before, but the Koran quotes drew the ire of some readers. YouTube (owned by Google) then took the video down "due to its inappropriate nature," and his account was disabled and all videos deleted because of his "repeated attempts to upload inappropriate videos." The video has resurfaced; watch it yourself to see what is "inappropriate" other than the viewpoint it expresses, with supporting evidence. If it's taken down, you can also get it (albeit in a less convenient format) directly from Nick Gisburne's site.
As I have noted before, I think selected quotations from holy works don't tell us that much about the nature of the religion today. Modern Christianity and 1600s Christianity use pretty much the same holy works; the difference in militance between the two stems not from the words as such, but from the way Christians understand those words. Nonetheless, surely quoting such phrases is an appropriate form of debate, just as arguing that those quotes are metaphorical, taken out of context, no longer viewed as currently binding divine commands, and so on is an appropriate form of debate. And quoting such phrases is an especially appropriate form of debate against those who generally take a "fundamentalist" — which is to say relatively literalist — approach to religion, and against those who praise a holy work (being the Bible, the Koran, or whatever else) as a great guide to life rather than praising certain aspects of the work or praising the traditions that have grown up around the work.
YouTube is a private company that is entitled to choose what it carries; and while using YouTube is a convenient way to effectively get your views out, you can certainly get them out even without YouTube. Nonetheless, consumers are also entitled to criticize YouTube and other media organizations — organizations that make a living off our vibrant marketplace of ideas — for refusing to carry certain important viewpoints because some find those viewpoints offensive.